The NewsHour with Jim Lehrer

GWEN IFILL: Good evening. I'm Gwen Ifill. Jim Lehrer is away. On the NewsHour tonight: Our summary of the news. President Bush is about to make his first Supreme Court pick; we'll talk about the legal choices and political challenges. An American suspected of-- but not charged with-- terrorism gets his day in court, while Congress revisits the patriot act. A conversation with pianist Keith Jarrett. Plus, remembering Gen. William Westmoreland and veteran PBS newsman Paul Duke; both died overnight.

NEWS SUMMARY

GWEN IFILL: President Bush will announce his nominee for the U.S. Supreme Court tonight. White House officials said today he has settled on his candidate. The nationally televised announcement was set for 9:00 PM, Eastern Time. The president, speaking today in advance of that announcement, said he has looked for one thing above all else.

PRESIDENT GEORGE W. BUSH: People who will not legislate from the bench. That's what I told the people when I ran for president. I want to be known as the kind of person who does what he says he's going to do because I believe it's right. And so I guess the best way to put it is I'll let you know when I'm ready to tell you who it is.

GWEN IFILL: In the Senate, Republican Whip Mitch McConnell praised the president for consulting with lawmakers. He said it should help the confirmation process. Democratic Leader Harry Reid took a more cautious tone. They spoke after party luncheons.

SEN. MITCH McCONNELL: We owe the American people a respectful process during the committee hearings and the floor consideration that honors the finest traditions of the Senate in the way that we for the most part throughout our history have dealt with Supreme Court nominations.

SEN. HARRY REID: Further animosity here in the Senate between parties depends on the president. We're waiting to see what he's going to do. There are a number of names floating around. Whatever name comes forward we're going to take our time and have the Judicial Committee take a good look at that. But we're on schedule. I see no reason we can't move forward in this. It's up to the president.

GWEN IFILL: We'll have more on this story right after this News Summary, and we will have full coverage of the president's announcement this evening beginning at 9:00 Eastern Time, on most of these PBS stations. An American citizen accused in the so-called "dirty bomb" plot went to a federal appeals court today. Jose Padilla's attorney demanded he be indicted or freed. Held as an enemy combatant since May of 2002, Padilla was accused of planning to set off a conventional bomb loaded with radioactive material. We'll have more on this story later in the program tonight. Police in Pakistan rounded up more suspects today in raids linked to the London bombings. Authorities said there will be more to come as they investigate Islamic religious schools known as madrassas. We have a report from Ian Williams of Independent Television News.

IAN WILLIAMS: Lahore's elite anti-terror unit was going through its paces today, preparing for a promised crackdown against religious extremists. Intelligence sources claim there've already been two dozen arrests in overnight raids across Punjab Province. The police have yet to confirm the movements of the London bombers while in Pakistan, or which religious schools they might have visited, but he is investigating several madrassas. The police say they are under enormous pressure on the London case but also the crackdown on religious extremism. But, as yet, they say they have no idea just how far the ten tackles from the London bombing extend within Pakistan. President Musharraf's call to root out extremism isn't his first, and the sense of popular skepticism was evident in newspaper cartoons today. There's also been stepped-up surveillance of travel documents at Karachi Airport, a day after copies of two of the London bombers' passports, together with photos taken at immigration, confirmed they did enter Pakistan through Karachi in November last year, returning to London in February.

GWEN IFILL: There was also word today Britain lowered its terror alert in June. The New York Times reported British intelligence officials concluded there was no group with the intent or capability to stage an attack. The British findings went on to say the war in Iraq was motivating terrorists. But Prime Minister Blair rejected that argument again today.

TONY BLAIR: Terrorists will use Iraq as an excuse. They'll use Afghanistan. Sept. 11, of course, happened before both of those things. Then the excuse was American policy or Israel. They will always have their reasons for acting, but we've got to be really careful of almost giving in to the sort of perverted and twisted logic with which they argue.

GWEN IFILL: In Iraq today, gunmen in Baghdad killed a Sunni Arab helping draft Iraq's new constitution. An adviser to the process also died in the drive-by shooting. Earlier, President Talabani, a Kurd, reported good progress toward finishing the constitution by the Aug. 15 deadline. Elsewhere today, an ambush near Baqouba killed 13 Iraqi workers heading to a U.S. Military base. A private group reported today nearly 25,000 civilians, police and army recruits have been killed in Iraq since the war began. More than 42,000 have been wounded. The U.S.-British organization Iraq Body Count reported that today. It said U.S.-led forces killed just over one-third of the victims, and criminal gangs killed a similar number. Insurgents were blamed for about 10 percent of the deaths. The findings were based on analyzing news reports. Israeli police squared off with thousands of protesters today near Gaza. The crowd wanted to march to Jewish settlements to show opposition to the planned withdrawal next month. Police surrounded the protesters and forced them back. The two sides traded punches, and police made several arrests. Protest leaders vowed to keep trying to reach Gaza. India's prime minister welcomed a nuclear deal with the United States. Just yesterday, President Bush promised to ask Congress to allow aid to India's civilian energy program. Today, Indian Prime Minister Singh told the U.S. Congress the two nations are becoming "natural partners."

MANMOHAN SINGH: Our relationship in this sector is being transformed. President Bush and I arrived at an understanding in finding ways and means to enable such cooperation to proceed and flourish.

GWEN IFILL: India has had nuclear weapons for 30 years, but has never signed an international treaty against the spread of those weapons. Still, Singh assured Congress his country will protect sensitive nuclear technology. Hurricane Emily roared across the Gulf of Mexico toward South Texas and Northeast Mexico today. The storm is expected to slam into the border area by late tonight, with winds of at least 100 miles per hour. In its path today, people around Brownsville, Texas, boarded up windows and piled sandbags. Hewlett-Packard announced today it will cut more than 14,000 jobs worldwide. The computer and printer maker said it's reducing its work force nearly 10 percent over the next year-and-a-half. It's part of a restructuring plan to save close to $2 billion. On Wall Street today, the Dow Jones Industrial Average gained 71 points to close at 10,646. The NASDAQ rose 28 points to close at 2,173. Retired Gen. William Westmoreland died Monday at a retirement home in Charleston, South Carolina. He commanded the huge U.S. buildup in South Vietnam from 1964 to 1968, and always defended that effort. In 1985, he said: "It's not that we lost the war militarily. The fact is, we as a nation did not make good our commitment." William Westmoreland was 91 years old. Veteran journalist Paul Duke died Monday at his home in Washington. He had leukemia. Duke hosted Washington Week in Review on PBS for 20 years, before retiring in 1994. Prior to that, he worked for the Associated Press, the Wall Street Journal, and NBC News. Paul Duke was 78 years old. We will have more on the lives of both William Westmoreland and Paul Duke at the end of the program. Between now and then: The nominee-to- be; terrorism and the law; Congress and the Patriot Act; and pianist Keith Jarrett.

FOCUS - MAKING A CHOICE

GWEN IFILL: Later tonight, we will know who President Bush has nominated to fill the Supreme Court seat to be vacated by Justice Sandra Day O'Connor. The speculation has been fierce, butthe president has left some clues. Here to take us inside the legal and political decision-making process at the court and at the White House are NewsHour regular Jan Crawford Greenburg of the Chicago Tribune, and Jim VandeHei of the Washington Post. Jan, what are our best bets who about the president is going to announce later on tonight?

JAN CRAWFORD GREENBURG: Well, this president can look at this nominee and, as he said, he will look at this nominee as a history-making pick. Many people have assumed that that suggests he will nominate a woman or a minority but the White House is see ago potential history-making pick as a nominee who would change the future and the direction of the Supreme Court. And that puts the focus back on a group of conservative men who have always been at the top of the White House short list who are highly regarded jurists and who could dramatically change the way the Supreme Court would rule on any number of issues.

GWEN IFILL: Not the women we've been hearing about all day. We've heard about Judge Edith clement from New Orleans; we've heard about Judge Edith Jones.

JAN CRAWFORD GREENBURG: No. The White House has always said and President Bush has always said he would nominate a nominee in the mold of Justice Thomas and Justice Scalia. And I have seen nothing to suggest that President Bush is not going to follow through with the pledge that he has made during his campaign. It's wrong, I think, to think of this as a history-making pick by focusing on a woman or a minority and certainly the president has said that he would like to nominate the first Hispanic to the Supreme Court. The way that I believe advisors have been suggesting that the White House should consider this pick is this is a chance to make history. Justice O'Connor was a swing vote. She had the key vote in any number of cases. She often sided with the liberals on key social issues. This is a nomination that can change the direction of the court, the future of the court. That's more important. That's the diversity, not the race, not the gender. We've moved beyond that in some way.

GWEN IFILL: It's ideological diversity you're talking about and Attorney General Gonzales who was the talk of the bloggers and everyone else last week --

JAN CRAWFORD GREENBURG: That goes back to he would be an historic pick, the first Hispanic nominated to the Supreme Court. But this is a pick that gives the White House a chance to nominate a person who could change the court for generations to come. This seat, O'Connor's seat, because of her key vote, her pivotal vote in a number of areas, if a Justice comes in, a conservative Justice who is a reliable conservative, say, someone like John Roberts, Judge John Roberts on the D.C. Circuit, a Judge Mike Luttig on the Fourth Circuit, that could change the direction and the future of the court. That's history.

GWEN IFILL: Jim VandeHei, forgive me for mispronouncing your name when I introduced you; I know better than that. How has the scene been unfolding at the White House?

JIM VANDE HEI: They've been very tight lipped today. This White House has really been brilliant over the years as keeping all of us guessing on these big picks. We've gotten a couple clues about how he's gone about this. And it's been mostly behind the scenes interviewing several candidates and talking with a lot of conservative legal scholars outside of the White House seeking their input. At this point we know there's probably five or six people in the White House who have known about this since this morning. They don't plan on lettingany of us know until probably 8:00 today. I think one thing we have learned from watching this president over the years is that you really just need to listen to what he says to get clues about what he might do. He has said he wants someone in the mold of a Scalia or Thomas. I think we can anticipate that we'll see someone like that chosen tonight.

GWEN IFILL: Now, we've heard that the president met yesterday evening at the White House with the chairman of the Senate Judiciary Committee Arlen Specter, and we have heard bits and pieces that he has at least been meeting with some of these different candidates for this. We think that those meetings are now over.

JIM VANDE HEI: Absolutely. I mean, it's fun to watch Washington in a situation like this because there's so much speculation about who that pick is going to be. Like I said earlier very few people actually know. I think yesterday by having Arlen Specter up to the White House it was a pretty clear sign that we were going to get an announcement today but even Arlen Specter isn't talking at all about who that might be. I think you're going to start to see people being alerted in the next couple of hours because this is really going to be a titanic partisan struggle where you have both sides that have been gearing up for years for this ideological and political fight over the courts. Those people need to be ready and prepared because once that announcement is made at 9:00 we're going to have two months of a campaign that looks very much like a very bitter presidential campaign in all likelihood.

GWEN IFILL: Jim, did the pace of this election process change at all in the time since last week when Justice Rehnquist announced he would not be stepping aside immediately?

JIM VANDE HEI: Right. I think it made it easier for the White House because they only had to focus on one pick. I think one of the interesting things about the timing is the political environment we're in right now. You have a president who really came out of the gates with a Social Security plan that has pretty much gone nowhere on Capitol Hill, set an august deadline forgetting an energy plan. It doesn't look like Congress is going to meet that. We have this whole controversy over this leak of a CIA agent's name which is really brought Karl Rove and other White House officials under scrutiny. So this is a chance for the White House to shift the focus to the courts. Where politically the White House feels it has a strong hand, they feel like they look at their internal polls and look at public polling. And they see that most people are pretty comfortable with the picks that the president has made in the... and the criteria he has set for choosing his next Supreme Court Justice. I think they're happy to have the war in Washington, if you will, move to the court.

GWEN IFILL: You and Jim seem to agree on one thing. That's that the president is going to stay true to his promise to try to pick a very strong conservative for this post. Does that mean that we automatically get a fight over something like abortion?

JAN CRAWFORD GREENBURG: Some people say that that means we're going to have a fight. Some people have been saying that we're going to have a fight no matter what. The people have been engaged on this issue we've been expecting retirement for months and months. This wasn't the retirement we expected. Justice O'Connor raises the stakes even more because of her pivotal role. And I'd like to say, I mean, many people had expected the president to turn to a woman or to a minority to fill Justice O'Connor's seat. She of course was the first woman nominated to the Supreme Court.

GWEN IFILL: Laura Bush weighed in.

JAN CRAWFORD GREENBURG: We've had some clues and some suggestions in recent weekdays or weeks that perhaps the president would turn to a woman but I think when we go back to it and when we look at what this White House has been saying and looking at and what the president has been saying, he is going to nominate a person who will be a history-making pick, a qualified nominee who will change and affect the direction of the court, not a woman and not a minority necessarily. We're going to be back to that list I think that we have been looking at.

GWEN IFILL: Jim, how unusual is it for this to become a big prime time rollout rather than a Rose Garden announcement midday like, say, Clarence Thomas was?

JIM VANDE HEI: Very unusual. Usually things are done in a much different format. But this president especially of late has really used this ability to talk to the networks and get a national audience to make big announcements. I mean, you remember not too long ago he wanted to talk about the status of the Iraq War when there was a lot of public criticism about how things are going over there. Now he's turning to that exact same format to talk about a Justice. It's his way of setting the tone of the agenda, of talking directly to the American people and getting his side of the argument out there ,knowing full well that both sides are going to really weigh in tonight and especially tomorrow and try to portray this candidate differently than he would like. I think he wants to be first out of the gate, wanted to keep it secret and wants to be able to get some positive coverage tomorrow before I think the inevitable flow of fighting that will come.

GWEN IFILL: And, Jan, how significant is it that the White House has been telling anyone who will listen about how extensive their consultations have been with the Senate?

JIM VANDE HEI: The senators have been urging the White House to hear them out and to have this exchange. I think at the end of the day the president is going to make the nomination that he wants to make. I think that's what he's decided. I think that's what we're going to see that at 9 o'clock. The argument he's going to make is this is the most qualified nominee. This is the person that is very much the person I said that I would appoint. This is the best person for this job.

GWEN IFILL: Jan Crawford Greenburg and Jim VandeHei, thank you both very much.

FOCUS - TERRORISM AND THE LAW

GWEN IFILL: Now, a two-part look at questions about the use of the law at home in the battle against terrorism. Terence Smith begins.

TERENCE SMITH: The Fourth U.S. Circuit Court of Appeals in Richmond heard arguments today in the case of Jose Padilla. Padilla, an American, has been accused of working with al-Qaida to carry out a terrorist plot in the United States. He was arrested in 2002, but never formally charged. Instead, he has been held as an enemy combatant, a status his attorneys say violates his civil rights as a citizen.

TERENCE SMITH: For more on this case and today's arguments, I'm joined by Ari Shapiro, who was in the courtroom for National Public Radio. Ari, welcome. To remind people, Padilla-- and that's the way his family likes to have it pronounced -

ARI SHAPIRO: That's right.

TERENCE SMITH: -- not Padilla -- is the person whose arrest was announced in rather dramatic fashion by then Attorney General Ashcroft in 2002 he was in Moscow, a live hook-up and the first accusation was that he was going to set off a dirty bomb somewhere in the United States.

ARI SHAPIRO: Exactly. Later it came out that perhaps he was in addition planning to detonate bombs made from natural gas in apartment buildings and carry out further attacks that way.

TERENCE SMITH: Okay. So now it reaches the arguments today. Tell us what happened in the courtroom today.

ARI SHAPIRO: Solicitor General Paul Clement spoke on behalf of the government. He told the government's story of Jose Padilla which they've not been forced to prove in court yet. They were perfectly prepared to prove it in court if asked to do so. He portrayed him as somebody who trained with al-Qaida leaders in Afghanistan and Pakistan, then traveled to the U.S. with the explicit intent of carrying out attacks against Americans. He said it would be nonsensical to argue that the president had less power to detain enemies as they approached their targets coming to the United States. He said the United States is part of the battlefield in the war on terrorism and so regardless of where Padilla was arrested the U.S. or overseas he said this is a battlefield arrest and it was perfectly legitimate to categorize him as an enemy combatant.

TERENCE SMITH: He was drawing something of a parallel to the other case that has been in the news that of -

ARI SHAPIRO: Yasser Hamdi.

TERENCE SMITH: -- Yasser Hamdi who was arrested outside the United States, another U.S. Citizen.

ARI SHAPIRO: That's right.

TERENCE SMITH: But his status as an enemy combatant was upheld by the Supreme Court.

ARI SHAPIRO: There were many parallels between Padilla and Hamdi, and that was discussed quite a bit today in court. Both were U.S. Citizens as you say. Both were declared as enemy combatants. Both cases were championed by civil liberty groups as a violation of fundamental constitutional rights. But, as you mentioned, the Supreme Court said that Hamdi could legally be classified as an enemy combatant. So the big difference in the argument here was whereas Padilla was arrested in the United States, Hamdi was arrested overseas and a lot of the discussion involved around what difference it made where someone was arrested.

TERENCE SMITH: Okay. Now, what was the fundamental argument put forward by Padilla's attorneys?

ARI SHAPIRO: Padilla's attorneys stood before the court and said I may be the first criminal defense attorney ever to stand here and say indict my client. He said, arrest my client. Bring him up on charges. Put him before a court or let him go. They said we're perfectly willing to argue this case in court but they said the courts have been open for the more than three years that their client has been in custody and that as a U.S. Citizen who was arrested in the U.S., they said it's appropriate for him to be brought to court and brought up on those charges.

TERENCE SMITH: And did they argue that there were wider implications for U.S. Citizens generally?

ARI SHAPIRO: Absolutely. After the hearing, the lawyer spoke outside of the courtroom and they said if the government wins in this case, it would mean that the government could come in and arrest anyone anywhere in the United States in the middle of the night and that you would disappear without access to a lawyer or being brought up on criminal charges. Now whether that's true is debatable but that was the case of Padilla's lawyers.

TERENCE SMITH: And did the government address that subject or that issue? Did they demur and say that's not so?

ARI SHAPIRO: The government didn't speak as extensively about the widespread implications. They did argue vehemently thatthe war on terror is unlike any previous war and as such the president needs the freedom to arrest U.S. Citizens even if they are on U.S. soil planning to carry out attacks against Americans.

TERENCE SMITH: I guess the fundamental concept was this notion that the war... that the United States is part of the battlefield.

ARI SHAPIRO: Exactly. The government lawyers said 9/11 proved that. The attacks in London proved that the battlefield is not limited to Afghanistan, Pakistan, but Padilla's lawyers retorted that the battlefield has been defined as a place where there is no other available court for people to be brought up on charges, and as they said in the U.S. the courts have been open for business for the last three years.

TERENCE SMITH: Could you tell anything from either questions or comments of the judges -- it was a three-judge panel --

ARI SHAPIRO: That's right.

TERENCE SMITH: -- as to what their thinking was?

ARI SHAPIRO: Two of the judges took very strong overt sides. One of the judges was nearly silent. One of the judges was Michael Luttig, who has been subject to speculation as a possible Supreme Court nominee. And he almost made the government's case for them saying at one point if you just forcefully and vehemently said that the U.S. is a battlefield in the war on terror, end of story, you could win this case easily. At another point one of the other judges seemed to make the case on the behalf of Padilla's lawyers. The third judge was nearly silent so it's difficult to know how this is going to turn out.

TERENCE SMITH: And what's the expected deliberation period here? When might we see a decision in this case?

ARI SHAPIRO: It could take a period of weeks. Regardless of how it turns out, more or less everyone expects it will reach the Supreme Court which will be the second time it's done so. The first time it reached the Supreme Court, the Justices, rather than deciding the subject matter of the case, said that it came from a wrong part of the country. They sent it back to South Carolina where a federal judge ruled that the government had to either charge Padilla or let him go and the hearings... the hearing today was the government's appeal to that ruling.

TERENCE SMITH: Right. In fact he said, that judge said 45 days, indict him or let him go?

ARI SHAPIRO: Exactly. So the government is hoping to have that overturned by the Fourth Circuit Court of Appeals which has a reputation as being a conservative court.

TERENCE SMITH: Right. Finally, the detainee, when Padilla was not there today. He's being held.

ARI SHAPIRO: That's right. He's being held in a Naval brig in South Carolina. His lawyers said they have had access to him which is unusual for someone declared to be an enemy combatant. Nothing in this case was about whether he is guilty of a crime or not. It was all about whether he can be declared an enemy combatant and held without being charged.

TERENCE SMITH: Ari Shapiro, thanks very much for filling us in.

ARI SHAPIRO: My pleasure.

GWEN IFILL: Along with the court hearing on the Padilla case, the debate over the government's law enforcement tools continues as Congress heads toward a required tort, a required reauthorization of the USA Patriot Act. Ray Suarez has that story.

RAY SUAREZ: Signed by President Bush in the weeks after Sept. 11, the Patriot Act gave federal law enforcement officials expanded search and surveillance authority to help prevent future attacks. But Congress also tacked expiration dates onto 16 Patriot Act provisions, and they're due to expire at the end of the year. President Bush has stumped in support of the counter-terror measure in recent months.

PRESIDENT GEORGE W. BUSH: The Act that has worked, the Act that has delivered good results, or given people the tools to deliver results, is now set to expire. That doesn't make any sense to me; that if something is working, why should it expire? We need to renew the Patriot Act.

RAY SUAREZ: But there has been no shortage of critics who have charged the Patriot Act has been used to violate civil liberties in this country.

CHIP PITTS, Amnesty International USA: Encouraging the presumption of guilt rather than innocence, the Patriot Act sweeps innocent people within its ambit.

RAY SUAREZ: Both sides of the debate were on display on Capitol Hill last week, when lawmakers in the House voted to make 14 of the Patriot Act's 16 provisions permanent. The remaining two were given ten-year extensions, one of which was the controversial library provision, which allows federal authorities to secretly search library and hospital records. Democrats fought unsuccessfully to scale back the provision.

REP. MAXINE WATERS, (D) California: There is no reason why the government should be allowed to demand the production of such personal private records without any judicial review or notice to the target.

RAY SUAREZ: Committee Chairman James Sensenbrenner defended the library provision and the Act's other enforcement tools, like delayed-notice search warrants, roving wiretaps, and information-sharing among intelligence agencies.

REP. JAMES SENSENBRENNER, Chairman, Judiciary Committee: While many including myself continue to be wary of the government having any more authority than absolutely necessary, we must view attacks as an important reminder that the specter of terrorism remains a clear and present danger to free nations around the world.

RAY SUAREZ: The roving wiretap provision allows investigators to follow a suspect from phone to phone without a new warrant. It was extended for ten years and amended to give judges more power over the merit and scope of the investigations.

RAY SUAREZ: For a closer examination now of these provisions of the Patriot Act and whether they should be renewed, I'm joined by Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania. She is also the former director of the Executive Office for U.S. Attorneys, which coordinates the roles of all U.S. Attorneys. David Cole is a professor at Georgetown University Law School and an attorney at the Center for Constitutional Rights.

And, Professor Cole, 14 of the provisions seem to be going right ahead without much argument over them. What were they about?

DAVID COLE: Well, all the provisions that were sunsetted are surveillance provisions that expand the government's power essentially to spy on us, often to spy on us in secret, often to spy on us without establishing probable cause that you are engaged in any sort of criminal activity. And those are the provisions that were sunsetted. Most of them are going forward at least from the... on the House side without much change. And the administration's position is that none of them need any change, which reminds me of President Bush's response in the 2004 debate where he said that he couldn't remember a single mistake that he'd made. They claim there have been no abuses under this Act, a claim that it's patently inconsistent with the facts, and therefore we should just go ahead, instead of recognizing that there was a real tendency to overreact in the immediate aftermath of 9/11 that this was part of it, that the enemy combatant position was part of it, that we need to correct for those overreactions. We need to keep ourselves secure but we also need to be consistent with our most basic principles.

RAY SUAREZ: Ms. Buchanan, from the point of view of federal law enforcement, what, if anything, would change if the entire Act were allowed to sunset?

MARY BETH BUCHANAN: The Patriot Act has really struck the right balance to give federal prosecutors the tools that we need to continue to investigate criminal acts and to protect American citizens from further acts of terrorism. This Act accomplishes all of these goals while still protecting the civil liberties of all Americans. We believe that all 16 provisions should be renewed because these provisions have been extremely effective in helping the government to prevent another terrorist attack from occurring on our soil. We've also had great success in charging several hundred cases that have involved terrorism-related offenses. And we believe that at this point since there have been no abuses, there are no changes that should be made to these very important tools that law enforcement desperately needs.

RAY SUAREZ: Well, you heard Professor Cole. He questions whether that's a testable proposition that there have been no abuses. Is it possible to check how evidence was gathered under the Patriot Act and see? Does Congress have that power?

MARY BETH BUCHANAN: It's very possible to check. In fact, under the Patriot Act, the Justice Department is required to report to Congress. So on a semi-annual basis with all of these provisions the Justice Department provides Congress with any information that it wants about how we've used these provisions. And, in fact, we've done that. We've told Congress exactly how we've used them, how many times we've used them and what the facts and circumstances are. Congress has the ability to get any information that they need about this Act and in fact no member of Congress has said that they have had a single instance of a Patriot Act abuse reported to them.

RAY SUAREZ: You've alluded to abuse. What kinds of things are you talking about?

DAVID COLE: Sure, plenty of abuses. The government is seeking under the Patriot Act to deport two permanent resident aliens in Los Angeles for having distributed magazines in the 1980s. And they claim that that makes them deportable under the 2001 Patriot Act for supporting a terrorist group. The government also prosecuted a student in Idaho for running a web site simply because on his web site there were links to other web sites that had speeches from other people that advocated Jihad. They claimed that that violated the Patriot Act. A jury threw it out and acquitted the defendant. The government denied entry to a moderate, highly regarded Muslim scholar who had been given a chair at Notre Dame, hardly a hotbed of radicalism, using the Patriot Act solely on the basis of his speech. The government has shut down six Muslim charities in the United States without having to put forward any evidence to show that they've committed any law violation. And when some of those charities have -- and this is under the Patriot Act as well -- when some of those charities have sought to challenge it in court, the government has relied on the Patriot Act to use secret evidence that the charities have no opportunity to see or confront. So we've got secret evidence, we've got denial of due process. We've got retroactively punishing people for distributing magazines. And they claim there have been no abuses. Again it depends on what you describe as an abuse. But I'd say that that's a wide array of abuses and the remarkable thing really is that those provisions aren't even under discussion because those provisions were not subject to the sunset. The provisions that are under discussion because they're sunsetted are surveillance provisions. And they are carried out in secret. And Congress gets minimal information, under the previous attorney general got virtually no information about how the Act was used. The people who are being surveilled are never told that they're being surveilled so you, I, Mary Beth, we could all be subject to surveillance under the Patriot Act. We'd never know because you're never notified even after the surveillance is concluded even if there are no -- there's no basis to believe that you've ever done anything wrong you're not told your phone was tapped; you're not told your house was searched, so where there's evidence of what they've done, there's abuse. And where there's not evidence it's because the entire process is secret.

RAY SUAREZ: How do you respond to that?

MARY BETH BUCHANAN: It appears that Professor Cole defines abuse as a provision of the Act that he doesn't agree with. And we simply are never going to agree on this point. The members of Congress who are responsible for reviewing the Patriot Act, whose job it is to provide oversight have publicly stated that no abuses of the USA Patriot Act have ever been reported to them. It is a very different thing to have a jury decide that there is not enough evidence to convict someone of a crime-- and I believe that that's what the professor was speaking about when he referred to the Idaho case. That happens not routinely but occasionally in our criminal justice system. And in those types of cases, the jury found that there just wasn't enough evidence to convict that particular individual. But that doesn't mean that the Patriot Act was abused. It simply means that in one particular case a jury did not believe that the facts established a crime.

RAY SUAREZ: The professor also suggested that secrecy under some of the provisions make it impossible to police, to check whether the Act is being used legally and to a legal effect.

MARY BETH BUCHANAN: Well, certainly some interceptions under the Patriot Act are secret, and they're intended to be. That's the whole purpose. But that is why the Foreign Intelligence Surveillance Act Court oversees these applications and oversees the granting of this power. So no interceptions are ever permitted without a court determining that it's appropriate, that there's probable cause to believe that the individual to be targeted is a foreign power or an agent of a foreign power. And once the court is satisfied that that is the case then they authorize the particular interception. Those interceptions are then reported to Congress on a semi-annual basis. So even though the target of the interception doesn't know that they are a target, that they've been surveilled, Congress knows. And Congress gets that information and Congress can review the number of times that these tools are used. And after giving Congress information every six months, they have never found an abuse of this provision.

RAY SUAREZ: Right now the House and Senate are not that close or not yet close on exactly how to handle the two remaining provisions, how long they should be renewed for and exactly how to referee things like the roving wiretaps, whether or not library records can be used. On the wiretaps, can you live with continued refereeing of judges and a continued review of this law, and not made permanent?

MARY BETH BUCHANAN: Well, we don't believe that sunset provisions are necessary with any of these 16 provisions. These provisions of the law are working and Congress at any time has the ability to consider legislation and to make amendments, so even without specific sunset periods, Congress could make changes to the law if they felt that it was necessary. And at this point we don't believe that any modifications in the law are necessary and so we wouldn't support further sunset provisions or further sunset dates for any of these laws.

RAY SUAREZ: And on the two aspects of the law that haven't yet been finalized?

DAVID COLE: Well nothing has been finalized because the Senate hasn't yet resolved what it's going to do, nor has the House. There's just the Judiciary Committee has. But I think that all of the surveillance provisions should continue to be sunsetted. That's one of the critical checks on abuse. The very fact that the administration knew that it was going to have to come back four years later and ask that these authorities be extended is an important check on the administration abusing that power. Now they want to get rid of that check as well. And one of the basic criticisms of the Patriot Act surveillance provisions was all these powers existed before the Patriot Act was enacted but they were subject to checks. They were subject to legal restrictions enforceable by courts. And what the Patriot Act did was eliminate many of those checks, give the government, for example, the power to get records on any of us from any third party, whether it be a library, a bookstore, a gun shop, a hospital, it doesn't matter, without showing that the individual upon whom they're seeking to get records is a criminal, is an agent of a foreign power, is ever engaged in any kind of criminal activity, and you're never notified that your records were seized.

RAY SUAREZ: Briefly, the U.S. Attorney, you just heard her, just suggested that none of these provisions need sunset regulations included in them because Congress can repeal these laws at its own discretion. You say the sunsets are absolutely necessary but then you say the law didn't work anyway, even with the sunset provisions. How --

DAVID COLE: I think the -- as everybody who is in Washington knows it's very hard to get something on the agenda of Congress. But a sunset puts it on the agenda. And so there's the opportunity to discuss it. There's the opportunity to look at it, the opportunity to analyze it. I think what's so unfortunate is that Congress initially only sunsetted a very small part of the Patriot Act so many of the abuses that I've talked about are of Patriot Act provisions that are not subject to sunset and there's been no discussion of them even though they've been extremely abused.

RAY SUAREZ: A quick response, Ms. Buchanan.

MARY BETH BUCHANAN: I have to say I disagree with everything that Professor Cole just said. First, Section 206 with the roving wiretap enabling us to use that in a terrorism case, it's exactly the same thing that we had under the criminal law simply allowing us to use this in a terrorism situation. We didn't have a sunset under the criminal law and we don't need one under the Patriot Act.

RAY SUAREZ: Thanks a lot both of you. Good to talk to you.

FOCUS - MAKING IT UP

GWEN IFILL: Now, a piano great, on finding the right notes. Jeffrey Brown reports. (Applause)

JEFFREY BROWN: When Keith Jarrett takes the stage for one of his solo concerts, it's just him, his piano, and a world of possibilities. Nothing is written down; everything is improvised. (Piano playing) Now 60, Jarrett has long been recognized as one of the foremost pianists around, primarily as a jazz musician, but also through several acclaimed classical recordings as well. (Piano playing) As a child growing up in Allentown, Pennsylvania, in fact, he was trained in classical piano. He switched to jazz in his teens, and began to make a name for himself playing with Charles Lloyd and others in the late 1960s (Jazz band playing), and then with Miles Davis's Electric Fusion Group. (Music playing) For the past two decades, he's headed a trio with bassist Gary Peacock and drummer Jack DeJohnette that some critics are saying is one of the best in jazz history. (Piano playing) But it's for his solo work that Jarrett is perhaps best known, concert-length performances, where an individual piece can last for minutes or an hour. (Piano playing) Beginning in the early '70s, he's released numerous recordings of these performances. One, the 1975 "Koln Concert," is one of the best-selling piano recordings in history. His newest release, called "Radiance," was recorded and videotaped in Japan. Keith Jarrett leads a very private life in rural New Jersey. He rarely does television interviews, but invited us for a visit to his home studio, where he practices and sometimes records, for a talk about the art of improvising.

KEITH JARRETT: When you are improvising, what you have to be true to is yourself. And you aren't historical. At that moment, you are at that moment, at that moment. And what I would wish the listener to do is just know that it's all as unprepared as they are. In other words, they don't know what's coming up, and neither do I. (Applause) (laughter) After a while, that's not scary. After a while, that's what you would want.

JEFFREY BROWN: Jarrett says he comes to the stage with no preconceived ideas or destination, just an openness.

KEITH JARRETT: When I go out onstage, if I have an idea in my head, it's going to be in my way. Those notes and feelings come to the player, come to the improviser, if he lets them. But if there's an idea in the way, those notes and those feelings will be restricted to whatever that idea started to be.

JEFFREY BROWN: So you sit down at the piano and you want to be ready for anything?

KEITH JARRETT: That's right. There are a lot of young players now who are imitating players they hear, or heard in the past. They haven't learned the lesson that the great players would have been wishing upon them, which would be, "That's the last thing you would ever want to do. You do not imitate; you find out what you are about and try to convey that to yourself and to the audience in some way that demonstrates what your experience is." (Piano playing)

JEFFREY BROWN: Sometimes the results are abstract, long flights of notes.

KEITH JARRETT: It's like you're being under shock all the time-- an electrical current is flowing through you.

JEFFREY BROWN: At other moments, the music is lyrical and song- like. (Piano playing) Even at its simplest, it's all unfolding for the first time, as here at the beginning of a section of "Radiance."

KEITH JARRETT: It sounds like I know everything about the piece when it starts. I mean, I think it starts -- (Piano playing) something like that. And then it turns into... (Piano playing) and then it just keeps going. Now, someone could have written that piece. In fact, many people might have written it. But nobody did, and I never heard it, and the only clue I had about what was going to come next was... (Piano playing) (laughs) I mean, that's it. (Jazz trio playing)

JEFFREY BROWN: When he's not flying solo, Jarrett continues to perform and record regularly with his trio. But here, too, where the music is more structured, Jarrett says it's all about listening, and being ready. (Jazz trio playing)

KEITH JARRETT: In the trio, we'll be suddenly swinging. You can't swing on purpose. You can't say, "We're going to sit down and now we're going to swing." This is a very good example of the entirety of what we're talking about. You can just be ready for swinging. And so sometimes it'll happen onstage, and we're looking at each other like the light just got turned on, you know? And we know we didn't turn it on, and we also know we don't know where the switch is. There is no switch; it just happens for many, many reasons that are beyond our control.

JEFFREY BROWN: And you just go with it?

KEITH JARRETT: Just go with it. A couple nights later, the trio might play that same tune and try to... remembering how great it felt, and nothing happens. And we all look at each other for... again, we now know, "here we are being dunces again."

JEFFREY BROWN: You make it sound sort of mysterious.

KEITH JARRETT: It is mysterious. It's totally mysterious, which is why if someone wanted a simple explanation of it, the last person... the first person that would be able to explain it simply would be someone who doesn't know anything about it. (Piano playing)

JEFFREY BROWN: Several years ago, Jarrett's career was in jeopardy when he was diagnosed with chronic fatigue syndrome, and had to stop playing for long periods. The disease, he says, is now under control, and "Radiance" is his first solo concert recording since his return. (Piano playing) Jarrett knows that his music is not for everyone. But he's able to travel the world and play for a loyal audience that's now followed his development for decades.

KEITH JARRETT: That's my job. I mean, I think that's an artist's job. I put much more weight on what an artist should be doing. I believe that everybody that pays money for a ticket is paying money for more than they're asking for.

JEFFREY BROWN: More than they're asking for?

KEITH JARRETT: Yeah. They're usually asking for "let's hear this again." And I'm always sitting there thinking, "I know if they've followed me this far, that there's farther to go." (Piano playing) (cheers and applause)

FINALLY - IN MEMORIAM

GWEN IFILL: Finally tonight, remembering a general and a journalist, both of whom died last night. First, Gen. William C. Westmoreland, who commanded U.S. forces during much of the Vietnam War. Kwame Holman reports.

KWAME HOLMAN: Westmoreland always maintained that the U.S. Military did not lose in Vietnam, the most controversial American conflict since the Civil War. He arrived in Saigon to command a few thousand American troops, mostly advisors, in 1964. When he left four years later, there would be more than million Americans on the ground waging a war of attrition against North Vietnamese forces hardened to sustain massive troop losses. Nevertheless, in November 1967, Westmoreland maintained a positive tone.

GEN. WILLIAM WESTMORELAND: I've never been more encouraged during my entire, almost four years in this country. Everybody is very optimistic that I know of, who is intimately associated with our effort there.

KWAME HOLMAN: That outward optimism was dealt a severe blow just more than two months later.

GEN. WILLIAM WESTMORELAND: The enemy, very deceitfully, has taken advantage of the Tet truce in order to create maximum consternation within South Vietnam, particularly in the populated areas.

KWAME HOLMAN: The 1968 Tet Offensive, though a military disaster for the Communists, helped shift American public opinion against the war. Westmoreland was recalled to Washington as army chief of staff. He retired in 1972.

SPOKESMAN: All right. Here we go.

KWAME HOLMAN: A decade after his retirement, Westmoreland would fight one last battle over Vietnam. In 1982 he filed a $120 million libel suit against CBS after their documentary accused him of willfully deceiving the civilian leadership during his command of forces in Vietnam. CBS and Westmoreland settled the case before it was sent to a jury; both sides claimed victory.

ROBERT MAC NEIL: Retired Gen. William Westmoreland.

KWAME HOLMAN: In a NewsHour interview, Westmoreland discussed the toll the war had taken on him.

GEN. WILLIAM WESTMORELAND (February 1985): Vietnam has, by virtue of the fact that I've been in the center of the controversy... it has been an albatross around my neck for years and years and years. I have conducted myself in accordance to my best conscience, and now I would like to close the books and fade away.

KWAME HOLMAN: Gen. William Westmoreland was 91 years old.

GWEN IFILL: We here at PBS were also saddened to learn today of the passing of our friend and colleague, Paul Duke.

SPOKESMAN: Washington Week in Review. Here's moderator Paul Duke.

PAUL DUKE (1974): Good evening. There have been more significant developments this week in the Watergate case.

GWEN IFILL: For 20 years, veteran journalist Paul Duke spent every Friday night at the helm of Washington Week in Review. Embracing journalism while still in his teens, Paul's career took him from the Associated Press to the Wall Street Journal to NBC News to PBS. His beat was the nation's capital; his love was politics.

PAUL DUKE: I'm Paul Duke with congressional reporter Linda Wertheimer and political editor Norman Ornstein.

GWEN IFILL: In the early 1980s, he anchored a weekly program on Congress. And in 40 years as a Washington reporter, he covered nearly every major story, including the impeachment hearings of Richard Nixon in 1974, and interviewed nearly every major political figure. He also devoted himself to documentaries, one on Truman's victory over Dewey in 1948...

PAUL DUKE: Everybody said it was no contest, that it would take a miracle for Truman to win.

GWEN IFILL: ...Another on the Kennedy-Nixon campaign of 1960...

PAUL DUKE: It was a wonderful campaign to cover.

GWEN IFILL: ...And on the inside workings of the Supreme Court. Paul prized civility, straight-ahead news reporting, and the viewers who joined him every Friday night. After retiring in 1994, he came back for a second tour of duty five years later, before handing the reins over to me.

PAUL DUKE (1999): Washington Week fans are the greatest in the world, which is why we've kept going for 'lo these three decades. No one made the case better than a woman from Fresno, California, who wrote in some years ago to say, "Thank goodness there's something that works in the capital without people yelling at one another." And I can assure you that's the way it'll stay under the new management. That's it for this edition. I'm Paul Duke, and good night for all of us here on Washington Week.

GWEN IFILL: Paul Duke died of leukemia at his home last night. He was 78 years old.

RECAP

GWEN IFILL: Again, the major developments of the day: President Bush will announce his nominee for the U.S. Supreme Court tonight on national television. And police in Pakistan rounded up more suspectsin raids linked to the London bombings. We'll be back at 9:00 P.M. Eastern Time on most of these PBS stations, with full coverage of President Bush's Supreme Court announcement. We'll also see you online and again here tomorrow evening. I'm Gwen Ifill. Thank you and good night.